tv Prime News HLN November 15, 2009 4:00am-5:00am EST
the record. >> is there any record at any stage, and i ask the question being fully aware of the delicacy of interfering in the process, of another state, is there anything on the record which indicates any attempt by canada to persuade the authorities in the u.s. to accelerate the process? it's been a long time unfolding. >> yes. i stand to be corrected. i believe the answer to that is no. now, to get back to the question of the section 7 breach, in approach the section 7 breach question, and remedy, it's
important in my submission that this court recognize that it does not exercise commission of inquiry-like powers into the circumstances at guantanamo bay, nor does it possess the remedial powers of a criminal trial judge in canada. as you recognized in your 2008 judgment, at paragraph 35, the ultimate process against mr. khadr may be beyond canada's jurisdiction and control. thus, you were not the court of competent jurisdiction to impose a stay of pros -- prosecution, directly or indirectly, nor are you in a position to make voir dire type decisions around the taking of a statement, nor are you in a position to consider whether there has been undue delay in bringing him to trial. the respondent must look to the u.s. courts for those remedies. and in fact, his materials show that he and others are pursuing
such remedies in the u.s. courts. we've summarized some of them for you at tab 14 of the condensed book. which includes judgments that show that statements obtained by oppression might be excluded, it shows his own case, where he went to the federal courts in the u.s. in 2005, with similar affidavit materials to that which he puts before you, and asks to be protected from torture or interrogation and the u.s. courts found that he hadn't established that there was any risk of those things occurring, going forward. so there are forums to litigate trial-like issues. what's being asked here in my submission is a stay of prosecution by any other name.
and in my respectful submission, that is not an appropriate remedy. now with respect to the section 7 breach, again, it's essential in here, in this case, if you're going to get to a remedy, to define the breach with some precision. and just before i do that, if i can just deal with one fact, which apart from my friend's pleadings, is -- was critical to the court's below in their judgments and indeed, it was critical to my friend's pleadings, and that fact concerns the allegation of sleep deprivation. at tab 1, where i've put his pleadings, you'll see in the
passage that i've high lighted, how important that fact was to his pleadings. in tab 4, what i've done for you is sum up the numerous references to that fact in the courts below, particularly in the majority judgment that we appeal from. and the fact is basically this, that before department of foreign affairs official interviewed the respondent in march of 2004, he was told by an american official that the respondent had been subject to sleep deprivation in the pr preceding three weeks. now that report i put at tab 2 of the condensed book. you won't find any allegations of sleep deprivation in any of mr. khadr's material. in his july 2008 affidavit, he doesn't make an allegation of sleep deprivation, nor does he make it in any of the other affidavits of his other
affidavit material. what i want to draw to your attention, because it's important for the breach question, is that in reading the judgments below, with the exception of paragraph 20 of the majority judgments from the court of appeals, you would get the impression that the knowledge of sleep deprivation affected all three canadian interviews. the interviews that took place in february of 2003, september of 2003, and march of 2004. that is not the case. that knowledge was obtained only before the final interview by the state official and in that interview the respondent answered no questions. >> how -- just staying with the section 7 breach, regardless of whether or not an informed one
or three of the visits that took place, isn't it -- can we look at the fact that there was the three week deprivation outlined in the defate report, look at the fact that there was a denial of habeas corpus, look at the fact that there was a denial of counsel, look at the fact that he was 15 years old in accordance with our own international obligations. is it the compendium of events whether there was a breach in the decision not to request his return or do we have to do issue by issue? >> well -- >> or fact by fact? >> i'm not trying to compartmentize the facts. of course, you look at all the facts. but the -- the case has
proceeded on the basis of judicial review of non-action of the government. the refusal to make this request. so we're talking about the breach being a legal obligation to make that request. this isn't a second review of the decision to interview. we're not talking about your 2008 decision again, and saying, let's just give a different remedy for the breach that you found last time around. that's not the way the courts below decided this case, nor was it pleaded before them. if we were just here to say, ok, we know you participated, that was a breach, and now we've got more evidence, of participation through the knowledge of sleep deprivation, this is a judicial review aimed at giving you another remedy, might not be here today if a remedy that was responsive to the nature of that
breach was imposed below. but that wasn't what was done. in my submission, both justice o'riley and the court of appeals in accepting his reasons, go further and say, ok, government. you didn't make the request. did you have a duty to make that request? was there a legal duty to make that request? and that is the breach that was found in this case in my submission, and it was inappropriately found, and i'll deal with that now if i can, about why that is not a breach. >> before you get to that, you had earlier said that this is a matter of discretion on the part of the government. so taking it out of the realm of what is the breach and whether this behavior constitutes a breach, in the exercise of
discretion, is it relevant for us then to consider all of those factors in determining the reasonableness of the decision not to request his return, including the sleep deprivation on top of everything else? >> yes. but -- at the end of the day, you do have to make a decision about reasonableness, and yes, you look at all the facts, but you still have to get through what the charter breach was, and the charter breach has to be based on a legal duty. in my submission. and you have a duty, knowing what you know, to make a request on his behalf, and in my submission, you can't get to that legal duty, no matter which of those facts you look at.
it just doesn't exist, it doesn't exist at international law. every single court that has looked at this same question around the world has come to the same conclusion. it doesn't lead to an enforceable duty on the government to make that request. they still retain their discretion even if the allegation is torture. >> but are we entitled to review the reasonableness of the exercise of that discretion? >> if there's a charter breach. >> only if there's -- so your position is, this comes back to the exchange you had with justice charon, in your view the only administrative justice law issues are process, not substance, and that if you want to look at substance, guggenheim to the charter? >> that is what this court in my submission, carved out in operation dismanhattan em. it's not everything -- we're not
in wisdom if foreign relations. we're into reviewing, is there a charter breach and you've got to define some sort of legal duty to act in this circumstance, because the contention is made, inaction breached my right, and you just can't get there, as a matter of international law, as a matter of -- or as a matter of charter laugh. -- law. >> since we're dealing with the application of a policy to a particular case, aren't we more into a baker's type of situation, rather than general policy about foreign relations between states? >> well, is it a matter of general policy? all requests that are to be made to foreign states are matters of great diplomatic import.
it's not simply trying to look at one request in isolation from the entire relations that canada has with the united states. it's -- come back to say again, i concede that it's reviewable. but you've got to find a duty. so in my respectful submission, what the federal court of appeal majority does, there's -- they reviewed this court's decision in 2008, and then they moved on, at paragraphs 56 to 60, which is also in -- it's at tab 6 of our condensed book. those paragraphs are key in my submission to the order against which i appeal, because in my submission, they constitute acceptance of justice o'riley's
reason that there was a duty here, and the duty was breached. that's the section 7 breach that we're talking about in this case. i said there is no duty at international law. justice o'riley reviewed the international law, and he said, quite right, there doesn't appear to be a duty at international law, but international law is not dispositive of the charter standard and i say fair enough, that's true, international law informs the charter, it doesn't determine it. and yet, mr. justice o'riley's methodology for discovering what the charter standard should be is wrong in hour submission. the international law commission, which has a mandate to articulate the principles of international law, and to promote its progressive
of those instruments is that each of them has a jurisdiction clause. which imposes the obligations on the state vis-a-vis the state and individuals within its jurisdiction. those instruments have nothing to do with state to state representation he is. and the -- representations. and the danger in taking esendingly the values out of those treaties, and imposing them into the charter is that that makes those treaties self-executing. every time the executive enters into a treaty, they effectively become the law of the land, without anything done by parliament to incorporate those. the problem gets completely cut out of the equation, and in my respectful submission, that's an important matter of system law. -- constitutional law, that parliament has a role to play.
now apart from looking at the treaties, as i said, he looked at the foreign judgments, but the foreign judgments provide no support for the recognition of such a duty. they come to the much more limited and i would say -- >> i just want to return to the argument, is it your argument that the prohibition against the torture is not part of canadian internal law? >> no, there is a -- 269.1, we signed on to the convention against torture and we implemented it. parliament did that. parliament implemented that treaty by imposing a criminal prohibition on torture. but -- so to get back to, again, the foreign courts,, they stopped short of finding such a duty, in each and every case,
and serious cases of alleged human rights abuse. they said, the government has nothing more than a duty to consider. and in my respectful submission, after you go through the treaties, you recognize the limitation on them. after you look at foreign law, all you find is that the most that someone has is a procedural sort of right and again i say, it can't n said in this case that there's been a failure of process he. the respondent has asked personally in his welfare visits that he be brought home, he's asked again through counsel, many other voices have asked on his behalf. the refusal to do so is not a failure of process. it's a difference of opinion on what should be done.
>> can i just take you back to your position that there's no charter breach? the respondent, if i've understood correctly, says well, when you -- when the government interviewed the last interview, the defate interview took place with the knowledge that mr. khadr had been sleep deprived, that that made canada complicit in something that would be contrary to fundamental just justice and that he was being detained under those circumstances, so their argument is there's complicity. can you tell us how you respond to that? >> yes, and i would say ordinarily, if, say, a police officer interviews someone with, knowing that they have been sleep deprived, to soften them up for interviews, they send out a charter breach and what i ask
you to look at though is the unique circumstances here, because when canada gets that knowledge, canada is able to at that time, in march of 2004, there were no welfare visits, no counselor visits. the choice that the department of foreign affairs official had, was go ahead and do the interviews, and ask intelligence questions, because those are the terms on which you're here, or, you say, no, i'm not going to play any sort of part in that, i'm going home immediately. and presumably, to complain. but if you're going to complain to the u.s. about the conduct, you just denied yourself the only opportunity you have to see mr. khadr. so in my respectful submission, yes, it's true.
ordinarily, it's wrong to conduct an interview in those circumstances, at least until you're satisfied that there's nothing wrong, but we don't control any of the circumstances there. >> but do i understand your answer to concede that canada was complicit, but they had no other choice, or just exactly where are you? >> no, i say, in those circumstances, it is hard to say that he made the wrong choice on that day. and does that amount to a charter breach simply because he went ahead? i concede, you could find that going ahead with with that knowledge is a charter breach, and then we're into the question of remedy, and if you're into remedy, you certainly would be looking at the fact that he didn't answer any of the questions. but that's as much as i can assist you on that point.
>> before you leave the international law aspect, mr. frater, one of the -- one of the instruments that the subcommittee relied on was the optional protocol to the convention on the arrest of the child, article 7. what, if anything,, in your view are con did a's obligation under -- canada's obligation under that protocol? >> again, they're jurisdictional obligations. that's what we have assumed in signing that. what mr. justice o'riley did in my submission is detach the jurisdictional limitation from the question of the values inherent in that treaty and then impose them on -- outside the treaty context. >> so could you then clarify for me what you say any
obligations -- any of canada's obligations are or are not to mr. khadr under that optional protocol? are you saying they don't exist or are they restricted by jurisdictional limitations and therefore don't apply to them. >> if we were the detainer, we would have full obligations according to the protocol, but we're not. the obligations exist for the person -- the country that's dealing with them, if they're a party to that protocol. and if your contention is that that party is in violation of those obligations, go to their courts and enforce your rights. >> doesn't the issue go beyond the sleep deprivation? i mean, really the case it seems, made against the government is that you had a regime in guantanamo that was
declared by the u.s. courts themselves to be operating outside any appropriate constitutional framework, was condemned by the u.s. courts, and the government of canada appreciated that one of its citizens was being held in foreign country under conditions which that country itself has declared it's legal, an on that basis, ought to have done something. i mean, it's more than a particular interview that was condensed. >> yes, but we did do something. you go wea back to the time linf requests, after those decisions came out, we asked that his rights be respected. >> but the whole point of the u.s. courts was, you know, they weren't being respected, and the u.s. courts were attempting to do something about it, so you're leaving somebody to seek a remedy in a situation where the courts themselves he have said
no effective remedy is being offered. >> right. and so the results of those u.s. decisions is that you do have access to habeas corpus review, and mr. khadr availed himself of it, more than once, on the materials he's put before you. if you're asking me in effect, don't you have to get something else for participation, canada's participation, that you found in 2008, if we get back to the point that that's the breach that we're talking about here, we say he's already received the responsive remedies to that, because if the violation is participation, the responsive remedies to me are stop participating, or at least stop participating in that process
until you've satisfied yourself that you've been fixed and that was processed in 2005 when an interim injunction was issued to stop us from doing any further interviews. the other remedy that would be responsive to participation is give up the fruits that you obtained as a result of that participation. but he's already got that remedy from you in 2008. >> my point was that i think the argument goes beyond participation. it is the fact that somebody is detained in conditions declared illegal, and part of the illegality was that there were no enforceable remedies and effectual remedies, and it is having a person incarcerated having those circumstances explained to them, whether you participate or not. >> yes. and so now -- but this is part
of the problem. and i -- in my submission with respect to the remedy that is imposed below. that is the state in 2003. we're giving a remedy in 2009 that fails to reflect that the system has been fixed. so in my respectful submission, you have to look at that in terms of what happened over the passage of time in determining, if that's the breach that we're talking about, whether a remedy that assumes we're still back in 2003 is an on the part and just law. >> certainly not conceded that it's been fixed. that is a matter of high controversy as to whether it's been fixed and if there is a question in that respect, the government out to err on the side of extricating somebody
from what was declared by the u.s. courts to be an illegal regime. >> again, the government has chosen to do what it did which is insist on respect for his human rights, including properly constituted trial courts, and number of other things, so that's what the government chose to do. the claim that's made is you've got to extricate him because, whattewhat, we're going to sit n judgment of whether the u.s. courts provides sufficient remedies for any of the harms that mr. khadr says that he suffered? that's not your role in my respectful submission. >> could we say the breach, rather than limiting it the way you've limited it, is it fair to characterize the breach as the refusal to request the return in the face of this context? is that what you're saying?
>> well, yes. i'd say that is, but -- >> the charter breach. >> the charter breach that he's aimed at is the refusal to make the request. but again, you only get to a breach if there's a duty to make the request. and again, you can't get there in international law, no other court has said you can get there as a matter of constitutional interpretation. and in my respectful submission, you just can't say there's a breach of the sort that justifies the remedy that the courts imposed below. >> are we confusing the duty to make a request or the unreasonableness of not making a request, and on the other hand, the right of the u.s. to refuse
a stay of proceedings is what is being sought here. and in my submission, whether it's direct or indirect, it's still wrong. >> you're saying that the stay of proceeding but isn't there some kind of midway and i understand we're now into the substantive outcome was wasn't there other response that the government would say that we would undertake sur rend for purposes of trial. i'm not sure i'm following you when you say what's, in fact, requested here is simply is part of the proceedings? >> it is a request to terminate proceedings because when your case says canada has been complicit in tyre, bring them back it's not like you're going to bring them back to a trial in canada. i agree with you there's a range
of things the government could have done and the government showed over the course of time that it was willing to do a range of things. it drew a line. >> yeah. >> the fact that it has other things that it can do at its disposal is a good thing. that's diplomacy. >> thank you, mr. frater. >> thank you. >> thank you, chief justice. this morning i expect to be referring to our fact and also the respondent's condensed book which was passed up this morning. firstly, as i did at the outset of the last cutter appeal i thought i would begin the court with an update as of the current status of the proceedings which are going on in both the united states and in cuba.
and firstly perhaps i could advise you with respect to the habeas corpus memorandum. we have an order from mr. khadr's habeas corpus judge a u.s. district court in d.c. this is something we should have put in your book of authorities but neglected to. as this order indicates that habeas proceeding has been stayed so it is not advancing at the present time. and as you can see from the terms of this order it has essentially been stayed pending the outcome of the military commission prosecution and also the appeals that would follow such a prosecution. >> so it's suspended rather than stayed? >> well, the order is stayed but, i suppose, it could be suspended. but mr. khadr is not able to advance that application at the present time because of the existence of the prosecution.
now, what happened after that is the prosecution was moving ahead more or less when we received the executive order from president obama, which is at tab 3 of our condensed book. this was signed just a couple days after president obama's nothing else. -- inauguration. there's a number of things in this order to note. firstly, if you look at page 5, and that's referring to our own numbering in the top corner of all these pages, you'll see president obama ordered that guantanamo shall be closed by one year from the date of this order, which would be january 22nd, 2010. and the remainder of this executive order essentially initiates a review process to review all of the detainees in guantanamo including mr. khadr to decide what is going to be done with each and every one you have them essentially. options include a prosecution in the federal courts in the united
states or a continued military commission prosecution or release or repatriation, various other options. if you look at section 5, which is on page 7, you'll note that part of this process involves diplomatic efforts that is negotiations with foreign countries to try to resettle many of the detainees in guantanamo. we don't know whether the u.s. considers that to be an appropriate disposition for mr. khadr, whether the canadian government has had any specific negotiations on that point. but we think it's important that this is a very important feature of the guantanamo bay detention system. and that's why we think the particular remedy that we have sought is just and appropriate in this case. diplomatic negotiations is a very important part of this unique process as the united states government attempts to close guantanamo bay. i would note that it appears to be widely accepted at this point
in time that there's no way that they're going to meet this january 22nd deadline. so we were, of course, hopeful that things would be settled by that point in time. that now appears highly unlikely. then finally as you'll see in section 7, another thing that this executive order did was it brought a halt to all the military commission prosecutions including mr. khadr's. so mr. khadr has a stay of his habeas proceeding pending the disposition of his military prosecution and then the military commission prosecution gets indefinitely stayed by this order. so mr. khadr is still completely without any type of legal process either through the habeas courts or the actual trial. >> does your position depend on whether or not there is, in fact, a process that takes place or is it your argument that notwithstanding whether there will be proceedings, you're still seeking a remedy? >> of course, yeah. it doesn't depend on that. we think this is a very
important factor for you to be aware of. i understand it's my obligation to provide you with an update of the status of the foreign proceedings. but certainly it is our position that beyond seven years with no process is a very important factor for this court to consider at various stages of the analysis of this case notably section 24.1 but also section 7, for example. quickly then because -- >> your client in the present time is kind of a limbo with no recourse -- with no sort of legal recourse. >> he's been in limbo, sir and he's been in limbo for well over seven years now. >> yeah. >> now, where we're at now is reflected in the declaration you'll see at tab 2 of our condensed book. this is a declaration in several commissions cases in addition to mr. khadr's and this is a
declaration in support of the most recent continuance or adjournment request for that commission prosecution. every so often we come back to the commission and there's been -- i believe this is the third continuance since the executive order. you'll see at paragraph 3 that there is a self-imposed deadline of 60 days from september 17th, 2009, to decide what's going to be done with mr. khadr. and it was imposed pursuant to this declaration. by our count that expires on monday. and just sitting here today, we happened to be online and we read a news report that apparently within one hour it will be announced that mr. khadr's military commission prosecution is going to continue. so that apparently has been the decision that has been rendered in relation to his case. we just heard about it moments ago. it's not additional yet but we expect that the military commission prosecution is going
to be put back on track somehow. and kick started again. and we don't obviously understand what schedule might accompany that prosecution. but apparently that's what's going to happen. a number of other guantanamo detainees are apparently being transferred to new york, notably the 9/11 -- the persons accused in the 9/11 prosecution will be going to new york. mr. khadr apparently is not going to be leaving guantanamo, it seems. so turning then to the actual merits of our argument in this appeal, i would like to emphasize a few points from our statement of facts just before turning to the argument itself. you'll see that at tab 4 we reproduced a report from the security intelligence review committee of canada. this is a report pertaining
specifically to the interviews of mr. khadr in guantanamo. we did not have this report in the courts below. it's quite recent. and what is being said in this report is not something new. >> can i just check where it comes and where it fits in? you've given us is general update which is, you know, not fresh evidence here so we didn't stop you but this report -- was this considered at one point? was it before anyone or -- >> it was not before anyone. we have not brought a fresh evidence application. and there's no -- we don't think there's any facts in this report that's new. we think it's more in the way of supporting what we've been saying all along. >> was it something that came out of the proceedings before justice mosley or -- >> no, it came out in july of 2009. so it was not even before the court of appeal in this case which was heard around that same day. maybe i'm getting my dates wrong. >> what do you propose for us to do with it.
>> i can make this point without reference to the report but i think the report underscores and supports what we have been saying throughout the entirety of this case. and, you know, if you don't want to look at the report, that's fine. we think -- the main points that we wish to make which were both made in the courts below is that when the canadian government decided to participate in this system in guantanamo to go down and to interrogate mr. khadr and share those impairings, which decision was made roughly in november of 2002. it was clear at that point that there were serious problems respecting both the legality of this detention regime and by that i mean, holding applications in communicado, right to fair trial and right to counsel and so forth and also the mistreatment of prisoners both in afghanistan and in guantanamo. and as i say, you don't to have look at this report. that's what we've been saying all along.
this report simply supports that conclusion and the committee concluded that they just ignored these warning signs. they were apparent. they were in the public domain. in addition to this report we've cited case law, we've cited resolutions from the apartmentry assembly of europe. -- parliamentary assembly of europe and there was very serious illegalities that were going on in guantanamo. and the canadian government knew or ought to have known that these violations were ongoing and they chose to participate in the system. one of the things the report underscores is the fact that the respondent was a child at the time. he was 15 when he was first captured and he was 16 when he was first interrogated by the canadians and 17 at the subsequent interrogations. >> perhaps this is a convenient point. i would like you to clarify for
us because you are putting emphasis on that material on that interview in particular when there was knowledge about the conditions and the canadian officials decided to go ahead. is your@@@@ @ @ @ @ @ @ @ clearer as a result of the interrogations. and indeed in our submission and i think the court of appeal majority agrees with us on this
point -- we think that the interrogations themselves even considered alone constitute a violation of section 7. it's more than that. it's a violation of section 12. and we are say that violation justifies the remedy that was granted in this case. but that has never been, you know, e- -- you know, our argument has never been limited to that point but it's simply been a very important aspect of our argument. >> from an analytical framework we've been through this a bit with the appellate. you allege that the decision of the government not to ask for his repatriation amounted to a breach. am i correct, a breach of the charter, the decision itself? >> yes. >> and that is why it would be reviewable by the courts. do i understand your argument correctly on that point? >> well, we do. that's an angle among others that we've taken in this case. and among other things we've said that this decision reflects bad faith in the administrative law sense. >> and what is your position and
answer to the appellate that there must be a duty to ask? it seems that the argument is that it's somehow founded on international instruments. can we find this breach. is it a principle of fundamental justice that the government has a general duty to protect? so i'm just trying -- the analytical framework here is important to anchor -- >> it is confusing. i'm sorry for interrupting. i do appreciate that it's confusing. let's ignore the interviews for a moment and say is there a duty to protect or a duty to make a request even absent the fact of canada's participation in the guantanamo bay system. so you're asking me to ignore a very important part of our claim. but recognizing that, we would
say, yes, there is a duty to protect even if there was no participation by canada in this system. and to be clear, we do not suggest -- we have never suggested that there is a generalized duty under international law or under the charter for the government to make diplomatic representations on behalf of canadian citizens whose rights are being violated by foreign governments. that is stated far too broad, far too generalized terms than we have ever stated. what we do state is that when you have, quote-unquote, serious breaches of peremptory norms against arbitrary detentions when those violations are being committed against a child who is a canadian citizen and who is conscripted as a child soldier, we say those are special circumstances which give rise to
a duty to protect. both under international law and under the charter. now when you look at the authorities that my friend cites in relation to international law -- >> you're talking about section 7 of the charter? >> i am, sir, yes. >> yeah, okay. >> and i'm also -- i'm also arguing at the same time about international law because, of course, international law i think we all agree informs the charter. it's not automatically incorporated into the charter. but it's certainly relevant. if you look at tab 14 of our condensed book, one of the best places to find this particular discussion is a decision -- i mean, i'm sorry. it's not a decision. it's a study by the the house of lourdes and the house of commons and it was not before the courts below but which we think is helpful. >> just as a matter of formality. do you take the position that
this report and the report you've referred earlier as government documents, receivable, a matter of judicial notice? >> chief justice, i would suggest that the cerk report can be. there's really not much in there by the way of facts that aren't already in evidence. this is more about argument, i would say. >> okay. >> certainly when it comes to this joint committee report, no, there's no facts in here that are relevant to this case. it's just -- it's an authority like a law review article essentially for the court to consider it persuasive. and so if you look at page 63 of this particular report -- and, of course, this is not the authority itself but it summarizes the applicable authorities on this point. you'll see in the underlined passage it says states are under a positive obligation to cooperate to bring such serious breaches to an end. and are required not to recognize as lawful a situation created by such serious breaches nor to render aid or assistance
in maintaining that situation. so, for example, where a state systemically tortures suspects, they are under a duty to bring a breach against incorporation of torture to end and are required not to recognize the practice as lawful nor to give any aid or assistance to it continuing. so this is a very specific, very special rule of international law. and when you look -- >> and what is it? what that you're referring. i don't want to get too technical. but you're referring -- there is a reference in this document with the articles under responsibility of states for international wrongful acts. but are these actually rules of international law or rules that are proposed, that are to be proposed to the state and may become part of international law at some future stage? >> right, sir.
i'd refer you firstly to tab 11 which sets out the articles themselves which are cited in the joint committee report that we just looked at. tab 11, page 53, articles 40 and 41 -- those are the articles that were being cited in the study i just referred to you. you'll notice this -- serious breaches is defined in article 40. that is a particular type of breach. it's not a one-off. it's not something that just happened one time. it's a systemic sort of a violation of a principle of use and you see the article 41 so that's the first -- first place i would take you. the second place i would take you then is the palestinian wall case, which is at tab 15 of our condensed book.
and so this, of course, is the decision from the international court of justice. this is the supreme court of international law. and if you look at page 70 of this particular case, you'll see -- sorry, sir. if you're not there, it's tab 15. and it's page 70. and you'll see -- you'll see that point is made right there by the international court of justice. now, if you -- if you've looked at our point, you'll see we put some discussion and footnotes and so forth where some commentators have said well, this may be just a progressive opinion as to where international law may be headed. but that -- that comment was made before this decision from the international court of justice. so it seems to us fairly clear that at least dealing with this specific type of breach of international law, there actually is a positive duty. >> how do you -- help me here. how do you translate those
international principles that you are referring to into domestic law so as to then further become a principal of fundamental justice under the canadian charter. as we know, there are several treaties even and all kinds of principles of international law. they don't all become automatically domestic law, where the domestic institutions, the government and the courts have a duty to implement them. what is your bridge to bring them into canadian law and further as a principal of fundamental justice under section 7? i need help from you on that point. >> sure. and i guess my answer is to say well, first of all, of course, the court has said the charter is to be generally interpreted in light of international law. it is not necessarily -- it does not necessarily incorporate all of international law. but i'd ask you just to look at the nature of this particular principle. and what it is based on first of
all, is violations of use cogence. >> a violation of -- jus and then cogens. and so these are the peremptory norms. they are like the constitutional norms of international law. they are the higher norms. they're the fundamental principles of fundamental justice, if you will. when it comes to international law. and they don't include many principles. they include the prohibition against torture and they include the prohibition against arbitrary detention, for example. so in my respect if i have submission when we're talking about principles of this nature, when they are recognized as not just being -- not just being your guardians of international law and peremptory fundamental justice in canada. >> in canada, you have to go
beyond because your argument seems to be those are fundamental principles even if we don't have a specific statute incorporating them here, they're part of our atmosphere, our law in canada. so there's no one here who could torture and so then and so forth. but how does it then translate into the canadian institutions having a positive duty to act when there is a breach of those normals elsewhere? >> well, first of all, of course, i would go back to point out that we're leaving the interrogations out of the equation entirely at this point, which i hate very much to do. >> not necessarily. >> okay. well, you know, i'll be getting back to that. if we set aside the interrogations for a moment, this court, of course, has recognized that the prohibition against torture is not just -- it's not just a legal prohibition. it's a principle of fundamental justice and i think this court made it pretty clear that it is
that this prohibition is a principle of jus cogens, a peremptory of international law. in my submission -- now, i don't have any canadian case law in relation to this positive duty that's discussed in these international law materials. >> well, there's no canadian case nor any international case. >> well, yeah, there's the international case. >> well, the international -- and national court, not the u.k., not the -- no national court have ever recognized such a duty to repatriate. >> frankly, i would acknowledge in the case where the court said this isn't a principle of english law. and that essentially this argument that i'm now making was rejected. if you then look at the mohammed case that followed that, it looked back and said it was probably mistaken. >> but when you're saying this is part of jus cogens, it's a
stretch to say it's part of the generally accepted law by all nations. >> well, i suppose, so. i mean, i suppose, you could have a principle of jus cogens that the entire international community recognizes as a peremptory norm and canada doesn't recognize it -- >> nor any other national courts. >> well, i don't have -- i don't have cases that specifically say so. the.. in a duty to re -- >> it's on that to of the peremptory norm against a torture.
there is also a peremptory norm that is subject in treatment in foreign countries. and that's where you have some problem. >> i think that's fair to say. i mean, the authorities that i have on this subject are the ones i've just read to you. and that's what there is. i mean -- >> it may be. that an indication in international law is not quite at the point where you would quite like it to be. >> even in the mohammed case that you referred to, they said expressly that it wasn't international law they were relying on. it was domestic law. >> i think that's probably true but i think the court also said when it comes to international law, it does seem that there is this positive duty. that has been recognized in the palestinian wall case.